June 30, 2000
Volume 6 -- Number 103

What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink.

This Issue (IN THIS ORDER):
 
04 New Opinion(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
02 New Opinion(s) from the Tennessee Court of Appeals
00 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility
 

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Lucian T. Pera
Editor-in-Chief, TBALink

STATE OF TENNESSEE  v.  JOHN ADAMS and RITA ADAMS

Court:TSC

Attorneys:

Robert C. Brooks, Memphis, Tennessee, for the appellant John Adams;
Walker Gwinn, Memphis, Tennessee, for the appellant, Rita Adams.

Paul G. Summers, Attorney General and Reporter; Michael C. Moore,
Solicitor General; Peter Coughlan, Assistant Attorney General,
Nashville, Tennessee, for the appellee, State of Tennessee.

Judge: BARKER

First Paragraph:

We granted this appeal to decide whether a jury must unanimously agree
as to the particular serious bodily injury used to support a
conviction for aggravated child abuse through neglect.  The trial
court held that aggravated child abuse through neglect is a single,
continuing course of conduct, and that the State was not required,
therefore, to make an election of offenses.  On direct appeal, the
Court of Criminal Appeals affirmed the appellants' conviction and
sentence for aggravated child abuse through neglect, and the
appellants requested permission to appeal to this Court.  After
careful analysis of the statute proscribing aggravated child abuse
through neglect and a review of other relevant statutory and case
authority, we hold that because aggravated child abuse through neglect
is a continuing offense, no election is required.  The judgment of the
Court of Criminal Appeals upholding the appellants' convictions and
sentences is affirmed.

http://www.tba.org/tba_files/TSC/adamsj.wpd





GREY GRAVES v. COCKE COUNTY, TENNESSEE and COCKE COUNTY SCHOOLS

Court:TSC

Attorneys:

Gerald L. Gulley, Jr. and Elizabeth A. Townsend, Knoxville, Tennessee,
for defendants-appellants, Cocke County, Tennessee and Cocke County
Schools.

Gordon Ball, Knoxville, Tennessee, for plaintiff-appellee, Grey Graves.                          

Judge: DROWOTA

First Paragraph:

This workers' compensation appeal presents two issues for review.  The
first is whether an employer is entitled to a credit under Tenn. Code
Ann. S 50-6-112 for future medical payments made on behalf of an
employee when the employer and employee settle their workers'
compensation suit for a lump sum award.  The second issue is whether
the made whole doctrine applies to workers' compensation cases.  For
the reasons explained hereafter, we answer both questions in the
negative.  Accordingly, the trial court is affirmed.

http://www.tba.org/tba_files/TSC/graves.wpd





STATE OF TENNESSEE v. JAMES C. NICHOLS

Court:TSC

Attorneys:

Jeffrey A. Devasher, Assistant Public Defender, Robert M. Robinson,
Assistant Public Defender, Mary Griffin, Assistant Public Defender,
for the appellant, James C. Nichols.
    
Paul G. Summers, Attorney General and Reporter, Michael Moore,
Solicitor General, Elizabeth B. Marney, Assistant Attorney General,
Victor S. Johnson, III, District Attorney General, Nicholas D. Bailey,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: BIRCH

First Paragraph:

We granted this appeal to determine whether the jury instruction given
pursuant to a previous version of Tenn. Code Ann. S 40-35-201(b)
during the guilt phase of the trial of James C. Nichols, the
defendant, violated his due process rights under the Fourteenth
Amendment to the United States Constitution and under Article I, S 8
of the Tennessee Constitution.  We consider also whether the evidence
is sufficient, as a matter of law, to support Nichols's conviction for
first degree murder. We hold that the jury instruction given is
constitutional.  Thus, Nichols's due process rights were not violated.
 Additionally, we conclude that the evidence is sufficient to support
Nichols's conviction for first degree murder.  The judgment of the
Court of Criminal Appeals is, therefore, affirmed.

http://www.tba.org/tba_files/TSC/Nicholsj.wpd





STATE OF TENNESSEE  v.  DONALD RAY SMITH

Court:TSC

Attorneys: 

Paul G. Summers, Attorney General & Reporter; Michael E. Moore,
Solicitor General; Daryl J. Brand, Associate Solicitor General,
Nashville, Tennessee, for the appellant, State of Tennessee.

W. Jeffery Fagan, Assistant District Public Defender, Camden,
Tennessee, for the appellee, Donald Ray Smith.

Judge: BARKER

First Paragraph:

In this appeal, we address whether prior inconsistent statements can
be used substantively to corroborate a confession when the prior
statements are admitted into evidence without objection.  We also
consider whether the failure of the trial court to instruct the jury
as to the limited use of the prior statements constitutes plain error.
 The Court of Criminal Appeals held that prior inconsistent statements
could not be used as substantive evidence and that the failure of the
trial court in this case to give a limiting instruction amounted to
plain error.  For the reasons stated herein, we hold that by not
objecting to the admission of the statements, the appellee waived any
objection to their use by the jury as substantive evidence to
corroborate the appellee's two confessions.

http://www.tba.org/tba_files/TSC/smithdr.wpd





RAYMOND HICKS v. WILBERT VAULT COMPANY.

Court:TSC - Workers Comp Panel

Attorneys:

Gregory D. Jordan and Jeffery G. Foster, Jackson, Tennessee, for the
appellant, Wilbert Vault Company.

George L. Morrison, III, and Mary Dee Allen, Jackson, Tennessee, for
the appellee, Raymond Hicks.                          

Judge: TATUM

First Paragraph:

This is an appeal by the employer, Wilbert Vault Company, from a
judgment awarding worker's compensation benefits to the employee,
Raymond Hicks, based upon a finding that the employee sustained 40
percent permanent partial disability to the body as a whole.  On this
appeal, the defendant/employer presents issues alleging that the trial
court erred in finding that the plaintiff/employee sustained any
permanent disability as a result of the work-related injury and that
the award of 40 percent permanent partial disability to the body as
whole was excessive and not supported by a preponderance of the
evidence.  Upon our de novo review, we find that the award should be
based upon permanent partial disability of 30 percent to the body and
modify the judgment accordingly.

http://www.tba.org/tba_files/TSC_WCP/hicksray.wpd





IN RE: THE ESTATE OF TROY P. FLYNN, DECEASED, HAROLD FLYNN, V. JAMES
EARNEST ARWOOD, ET AL

Court:TCA

Attorneys:

John K. Harber, Pryor, Flynn, Priest and Harber, Knoxville, for
Petitioner-Appellant.

Edward L. Summers, Haynes, Meek & Summers, Knoxville, for
Respondents-Appellees.
                          

Judge: FRANKS

First Paragraph:

The Trial Court granted proponents of the Will Summary Judgment on the
ground there was no evidence of undue influence.  Contestant appealed.

http://www.tba.org/tba_files/TCA/flynnt.wpd





MORRIS SLUTSKY, et ux v. CITY OF CHATTANOOGA

Court:TCA

Attorneys:

Marvin Berke, Chattanooga, Tennessee, for the appellants, Morris
Slutsky and Anetha Slutsky.

Michael A. McMahan, Chattanooga, Tennessee, for the appellee, City of
Chattanooga.

Daniel M. Gass, Knoxville, Tennessee, for the appellee, St. Paul
Guardian Insurance Company.                          

Judge: SUSANO

First Paragraph:

This case arose out of a two-vehicle accident involving an automobile
owned by the City of Chattanooga ("the City").  The plaintiffs sued
the City for damages arising out of that accident.  Process was also
served on the plaintiffs' uninsured motorist carrier.  The claim
against the latter seeks to recover the portion of the plaintiffs'
damages that exceed the City's limit of liability under the
Governmental Tort Liability Act ("the GTLA").  The trial court granted
the insurance company's motion to dismiss, holding that the
plaintiffs' suit did not implicate their uninsured motorist coverage. 
The plaintiffs appeal, arguing that they are entitled to recover under
the uninsured motorist coverage of their automobile insurance policy. 
We affirm.

http://www.tba.org/tba_files/TCA/SlutskyM.wpd

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